Social Media and the First Amendment

Social media is a crazy world, indeed, sparking firestorms over petty things, such as the color of some dress in Scotland. Most social media posts connect people to ideas, news, fun and each other. There is, however, a dark and demented corner of social media where posters threaten and scare individuals. That leaves law enforcement with the challenge of sorting out which online threats to take seriously and which goofy rants to ignore. In a society in which free speech is valued under the First Amendment, this is quite a quandary.

The Supreme Court is deliberating a ruling that could help law enforcement assess threats delivered through social media. Oral arguments were heard this winter in a case in which a Pennsylvania man, Anthony Elonis, was convicted for posting threatening messages on Facebook. His posts appeared to target his estranged wife, his former place of employment and even elementary schools in the area. One post, believed to be directed at his wife, read, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Other posts were equally as frightening.

For his conviction to stand, the Supreme Court must find these social media rants were “true threats” in the eyes of a “reasonable person.” Elonis’ attorney tried to convince the court that his client had no intent to cause fear, and that Elonis’ online outbursts were somehow the stuff of art and self-therapy.

Justice Ruth Bader Ginsburg seemed to sympathize with that argument, asking “How does one prove what’s in somebody else’s mind?” Well, for one thing, you look at the words that somebody uses.

Words have meaning. A person’s words give a clear window into what that individual is thinking. A reasonable person could easily see a real threat in online posts that talk about the ex-wife’s head on a stick, her shallow grave and “a thousand ways to kill you.”

Justice Samuel Alito dismissed the artistic/therapeutic rationale, “This sounds like a road map for threatening a spouse and getting away with it.” Justice Antonin Scalia incredulously asked Elonis’ attorney, “This is valuable First Amendment language that you think has to be protected?”

That is the key question for the court to answer. Few categories of speech are not allowed under the First Amendment. The court must decide if threats delivered through social media should be included as protected.

The Supreme Court’s guidance is much needed to determine how threatening a digital message must be to actually break the law. Online threats pop up routinely these days. A 17-year-old in Brooklyn was arrested recently for a Facebook post that included an expletive-filled threat against police and a cartoon image of a policeman with three guns pointed at him. The charges were later dropped, with the teen’s attorney saying his client never intended to act on the threatening post. The decision didn’t sit well with Patrolmen’s Benevolent Association President Pat Lynch, who said in a published report that the message was “easily interpreted by any reasonable person as a call for violence against police officers.” The NYPD has recent sad history with violence against its officers.

Bomb threats posted on Twitter in recent weeks have been taken quite seriously by authorities, leading to the grounding or emergency landings of several airplanes. Those threats might not have been serious either, but the FAA and the airlines could hardly shrug them off.

In the Elonis arguments, Justice Elena Kagan reminded fellow justices that “the First Amendment requires a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior.” True enough, but it is hard to see how stopping social media death threats chills worthwhile speech. Staunch First Amendment defender Justice William Brennan wrote in 1957, “The unconditional phrasing of the First Amendment was not intended to protect every utterance.”

The upcoming Supreme Court decision must provide guidance to social media users and law enforcement about the boundaries of online threats. The key should not be the poster’s intent, but rather the effect of threatening posts on the receivers. Online threats are still threats.

Jeffrey McCallis a Professor of Communications and Theater at DePauw University in Greencastle, IN, and author of Viewer Discretion Advised: Taking Control of Mass Media Influences. This post was originally published in theIndyStaron March 5, 2015. It is republished here with the permission of the author. Contact McCall at jeffmccall@depauw.eduand on Twitter@Prof_McCall.